1 Filed 6/ 24 /21 (unmodified opinion attached)
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JAMELL TOUSANT, Defendant and Appellant. A156044
(Alameda County Super. Ct. No. 178808 )

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the partially published opinion filed on May 26, 20 21 , be modified as follows: On page 8, in the first full paragraph, sixth sentence , change “Officer Fuentes, who arrived on the scene, believed the car was connected to the shooting,” to “ Officer Fuentes and Sergeant Royal arrived at the scene, and Sergeant Royal believed the car was connected to the shooting. ” On page 10, in the first full paragraph , in the first to the last sentence change, “Shell casings and a loaded firearm magazine were located on the street a few feet from the car” to “ A loaded firearm magazine was located on the scene, and shell casings were on the street a few fe et from the

car . ” I n the paragraph beginning at the bottom of page 10 that begins with the sentence, “These circumstances

— ” change the phrase within th at

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part s III through VIII of the Discussion.2 sentence at the top of page 11 from “its unfamiliarity to nearby residents,” to

“ its unfamiliarity to a nearby resident

. ” On page 15, first paragraph, in the sentence beginning, “By turning the cellphone on,” change the words “viewing a photo” to “ viewing a few photos .” On page 39 , in the paragraph that begins at the bottom of page 38, in the sentence that begins, “And although specific intent to target a person is not required,” change the words from “10 to 15 shots were fired directly at one of the men” to “ 5 to 10 shots were fired directly at one of the men.” There is no change in the judgm ent. Appellant’s petition for rehearing is denied.

Dated: _______________

_________________________ Kline, P.J.3 Trial Court: Alameda County Superior Court
Trial Judge: Hon. Kevin R. Murphy

Counsel:
James S. Donnelly

- Saalfield, under app ointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share, Leif M. Dautch and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.1 Filed 5/26/21 (unmodified opinion) CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE , Plaintiff and Respondent ,
v. JAMELL TOUSANT, Defendant and Appellant

. A156044
( Alameda County Super. Ct. No. 178808 )

A jury convicted d efendant Jamell Tousant of numerous counts related
to a shooting targeting several individual s in a residential area of Berkeley and to his possession of firearms

. On appeal, Tousant primarily challenges the denial of his motion to suppress evidence downloaded from his cellphone , seized after an allegedly illegal search of his car left at the scene of an Oakland shooting

. He also identifies several purported ly erroneous rulings , including the admission of incriminating statements to a police officer , admission of uncharged acts, denial of a motion to sever, and an improper response to a jury question

. There was no error in these rulings

. We also reject Tousant’s claim the evidence supporting three assault conviction s wa s insufficient and affirm

.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III through VIII of the Discussion.2 BACKGROUND
In January 2016, the Alameda County District Attorney filed an eight

count information , charg ing Tousant for c r imes related to an August 15, 2015 shooting

. This included four counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2) 1 (counts 1

- 4) ); two counts of shooting at an inhabited dwelling (§ 246 (counts 5

- 6) ); one count of shooting at an unoccupied vehic le (§ 247, subd. (b) (count 7) ); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1) (count 8) ). The information further alleged an enhancement for personal use of a firea rm and causing great bodily injury for
the assault and shooti ng of the dwelling (§§ 12022, 12022.5, subd. (a) , 12022.7, 12022.53)

. In July 2016, a n additional three

- count information was filed related to an August 31, 2015 traffic stop , alleging Tousant was a felon carrying a concealed, loaded, and unregistered firearm in a vehicle (§ 25400,
subds. (a)(1), (c)(1), (c)(6) (count 9) ) ; carr ying a loaded, unregistered firearm on his person in a city (§ 25850, subds. (a), (c)(1), (c)(6) (count 10) ) ; and possessing a firearm (§ 29800, subd. (a)(1) (count 1 1) ). The two cases were later consolidated. The evidence below was revealed at a 2018 jury trial.
I. Murder of Tousant’s Son In April 2015, Tousant’s son , Tousant Jr., was shot and kille d as the result of possible gang violence

. To prevent retaliatory shootings, u ndercover police surveilled t he hospital where Tousant Jr. was brought for treatment but ultimately died

. One officer witnessed Tousant standing outside the hospital , holding a lon g
- barrel ed shotgun and an ammunition belt with

1 All further statutory references are to the Penal Code unless otherwise stated.3 shotgun rounds

. Tousant was upset and agitated, at one point loudly stating , “Fuck that. Fuck the police.” Oakland S ergeant Leonel G. Sanchez , who was investigating
Tousant Jr.’s murder, later sought information from Tousant

. Sanchez asked Tousant to contact him if he discovered or received any helpful information , cautioned Tousant to not take matters “into his own hands , ” and urged him allow the Oakland Police Department to investigat e his so n’s death

. Aside from expressing his belief Tousant Jr.’s death may have been related to a dice game, Tousant did not provide Sanchez any information at that time

. Tousant nonetheless undertook his own investigation

. He believed his son had a feud with the Five Finga Mafia, a gang in Berkeley. Tousant Jr.’s friends confirmed the Five Finga Mafia threatened them after they took a chain and a watch from the gang’s members. Tousant searched for information about Five Finga Mafia , e ventually identifying people associated
with them. Members of the Five Finga Mafia included Nigel Blackwell and Kevin Green e

. Tousant later came to believe that Nigel Blackwell killed his

son. II. Berkeley Shooting The evening of August 15, 2015, Jocko Mi lan, Rashad Jacob, 2 David Conerly and Kevin Green e were standing outside 2806 Mabel Street , a house in Berkeley across the street from San Pablo Park. A t approximately
6:30 p.m., a white, four

- door vehicle pulled up in front of the house

. From the car window, t he passenger fired 10 to 15 shots f rom a long

- barreled gun

2 There is a discrepancy in the record regarding the spelling of Rashad Jacob’s name. We adopt the spelling of his name used in the information and medical records, “ Rashad Jacob. ”4 towards the house where the four men congregated

. Green e and Jacob ran
away and jumped over a fence

. Jacob was shot in the leg. One of the men ran out of the house’s front yard and continued down the street. The driver got out of the white vehicle and fired approximately 5 to 10 shots from a handgun at the fleeing man , who eventually hid behind another car

. The
driver then got back into the car and drove away. At that point, Conerly jumped into a friend’s car and drove away.
In another car , a witness who was waiting at a traffic light near by heard the gunshots

. That witness soon noticed the white, four

- door vehicle pull up beside his car , drive on the wrong side of the road , and slowly drive through the red light. Th is witness wrote down the license plate number , 6AAY078 , which was later determined to be the license plate for Tousant’s

c ar

. Police recovered 10 bullet casings from the scene of the shooting

— seven 7.62 by 39

- caliber casings, and three .45

- caliber casings. Records confirmed
that Tousant ’s cellphone was near San Pablo Park at both 6:17 p.m. and
6:2 7 p.m. the day of the sho oting. Shortly after the shooting, Tousant and his girlfriend, Hillary Yamitch , exchanged a series of messages . In one, Tousant texted, “I’m Hot [

. ] Did something trying to see if the police come over.”
Yami t ch responded, “ [W] hat? I thought you said you weren’t going to do anything.” Tousant denied taking any actions, but again asked Yamitch whether police were at their house. Tousant stated, “I c an’t worry about justice for my son & worry about your feelings to [ sic ] I tryed [ sic ]. But for once I’m going to take my son [ sic ] side .”5 III. Uncharged Oakland Shooting At approximately 4:30 a.m. on August 20, 2015, Bruce McMahan backed his car out of the driveway from his house at 131 2 105th Avenue in Oakland

— a driveway shared with his neighbors living at 1314 105th Avenue

. Someone then jumped out from behind a car on the street and started shooting at him. Several bullets pierced through McMahan’s car but did not injur e him . He panicked and quickly reversed his car

. While backing up, McMahan saw another man directly across the street. The shooter and the man standing across the street then got into a white four

- door vehicle and drove away. From the scene of this shooting, police recovered 14 9

- m illimeter shell casings, a loaded semiautomatic handgun magazine, and two unfired 7.62 by
39

- m illimeter bullets. They also found Tousant’s red Chev rolet Camaro rental car parked across the street from McMahan’s house , blocking a resident’s driveway, and only a few feet from the shell casings. Police
searched the car and recovered , among other things, the rental agreement for
the car and Tousant’s cellphone

. One of Tousant’s contacts had sent him a message with the address
1314 105th A venue

— the address of the Oakland shooting. The contact , at Tousant ’ s request, had confirmed the address belonged to “Nigel

. ” After

r eviewing the internet search history on Tousant’s cellphone , the police
determined Tousant had looked up the 1314 105th A venue address at
10:57 p.m. on August 19, five hours before the Oakland shooting occurred. In one text message sent t wo days before the shooting, Tousant stated , “Brah, it’s serious” and “Bring my gun. I’m on 9 Ave.”6 IV. August 31, 2015 Traffic Stop On August 31, 2015, Tousant and two other people w ere sitting in his parked Chevrolet Impala while in Oakland

. An Oakland police officer checked the license plate number, 6AAY078 , and confirmed Berkeley police were seeking the car in relation to a n unspecified violent crime. The officer then performed a traffic stop of Tousant’s car , detained T ousant and the
other passengers , and informed Berkeley police about the stop

. The Berkeley police arrived and search ed the car , yield ing a loaded 9

- millimeter handgu n and a 7.62 by 39

- caliber shell casing, the same caliber bullet as one of the

guns used in the Berkeley shooting.
V. Defense Case Tousant testified that w hen his son was killed on April 28, 2015, he stood outside the hospital with a shotgun and ammunition because he wanted to protect other members of his family from possible gang violence

. He acknowledged meeting with Sanchez , agreed to help with the police investigation, and started gathering information about possible suspects and
motives relevant to his son’s killing. While he admitted researching the Five Finga Mafia and Kevin Green e , he disavowed any knowledge of Green e ’s
residence.
T ousant admitted he was near San Pablo Park on August 15, 2015, the day of the Berkeley shooting, but claimed he was v isiting his girlfriend. Upon hearing the gunshots, he left the area and drove to Oakland. At the time, he was using his Camaro rather than his Impala. He had lent the Impala to a man named “Fresh.” Later that night, Tousant discovere d his Impala had been involved in the Berkeley shooting. He texted Yamitch7 because he fear ed the car would connect him to the Berkeley shooting. He further explained that when he texted “Did something,” he was referring to lending his Impala to Fresh. Tousant also acknowledged that he was at the scene of the Oakland shooting

— where he believed Nigel Blackwell lived

— o n August 20, 2015. He arrived at approximately 3:00 a.m., parked his Camaro across the street, stayed there for approximately one hour bef ore he walked around the block to look for Nigel Blackwell’s car. When he later heard gunshots, Tousant fled on foot, leaving his Camaro because he “didn’t want to deal with it.”
VI. Verdict and Sentencing The jury convicted Tousant of all counts but found the personal

- use firearm allegations not true. The trial court imposed a sentence of 22 years in state prison. This timely appeal followed. DISCUSSION
I. The Trial Court Properly Rejected Tousant’s Motion to Suppress Evidence Obtained from His Car and Cellphone

. Tousant claims the trial court erroneously denied his motion to suppress evidence obtained after the Oakland shooting and in violation of his Fourth Amendment right to be free from unreasonable searches and seizures

. (U.S. Const., 4th Amend.) After assessing each aspec t of the search and seizure, w e disagree. A. Standard of Review A warrantless search is presumptively unreasonable unless it falls within a “ ‘specifically established and well

- delineated’ ” exception to the warrant requirement. ( People v. Lopez (2019) 8 Cal.5th 353, 359 ; U.S. Const., 4th Amend .) “Evidence obtained from a search or seizure in violation of the8 Fourth Amendment must be excluded from use at a criminal trial only if required by federal law.” ( People v. Barnes (2013) 216 Cal.App.4th 1508, 1513.) A defendant may move to suppress evidence obtained without a warrant as unreasonable. (§ 1538.5, subd. (a)(1)(A) .) T he prosecution must demonstrate a legal justification for the search

. ( People v. Evans (2011)
200 Cal.App. 4th 735, 742 .) When reviewing a ruling on a suppression motion, we consider the record in the light most favorable to the trial court’s decision and defer to its factual findings if supported by substantial evidence. ( People v. Woods (1999) 21 Cal.4th 66 8, 673

- 674 .) We independently review whether the search or seizure was reasonable. ( Ibid

. )
B. The Relevant Facts and Proceedings Below
P olice engaged in a warrantless search of Tousant’s Camaro rental car a few hours after the Oakland shooting

. The car was parked directly across the street from McMahan’s house. The resident who lived across the street from McMahan informed Oakland police that the car was not there when he left for work at approximately 2 :00 a.m. When he returned home at approximate ly 5:00 a.m., he f ound the car partially blocking his driveway. He did not recognize the car , and no one came to retrieve it after the shooting. Officer Fuentes, who arrived on the scene, believed the car was connected to the shooting. The doors to the car were unlocked and the keys were in the ignition

. A police technician entered the car, and o nce inside, saw a cellphone and some clothing and found a rental agreement bearing Tousant’s name in the car’s center console

. The officer collected these item s and took them to the police department. On September 2, Officer Lorena Arreola, who had been investigating Tousant and his potential involvement in the Oakland shooting , turned on the seized cellphone to identify its phone number . She retrieved the number9 by looking through the settings folder on the phone

. She also found a photograph of Tousant’s driver’s license on the phone. A computer program used for identifying phone subscribers by their telephone numbers indicated
the cellphone belonged to Tousant. Arreola then used this cellphone number
and other details of her investigation of Tousant to write an affidavit in support of a search warrant of the cellphone. A warrant issued on September 4 , and Arreola downloaded the cellphone’s contents , including Tousant’s photos, internet search history and the text messages between
Tousant , Yamitch, and other contacts

. At a preliminary hearing before a magistrate, Tousant moved to quash the warrant and suppress this evidence (§ 1538.5)

. T he magistrate held that
Tousant had standing to challenge the search of the car , finding he did not abandon it . But the magistrate summarily denied the suppression motion. Tousant’s trial counsel renewed the motion to suppress (§ 1538.5, subd. (i) )

. Like the magistrate, the trial court found Tousant did not abandon the car
but denied the motion

. C. The Search of Tousant’s Car W as Justified

. Tousant contends the re was no probable cause to search his Camaro
without a warrant. We find the search and seizure justified under the automobile exception to the warrant requirement

. That exception authorizes l aw enforcement to conduct a warrantless search of any area of a vehicle if there is probable cause to believe it contains evidence of criminal activity or contraband. ( People v. Lopez , supra, 8 Cal.5 th at p. 372; U.S. v Ross (1982) 456 U.S. 798, 799

- 800 .) “Probable cause to search exists when, based upon the totality of the circumstances . . . ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” ( People v. Farley (2009) 46 Cal.4th 1053, 1098 ( Farley ) ; Illinois v. Gates (1983) 462 U.S. 213, 230

- 239.) The automobile exception is10 rooted in the differences between vehicles and dwellings

— vehicles are mobile, creating a risk evidence may be moved or lost while officers s eek out
a search warrant. ( Califor nia v. Acevedo (1985) 500 U.S. 565, 569.) T he rationale for this exception evolved , recognizing there is a lesser expectation of privacy in a vehicle than a dwelling. ( California v. Carney (1985) 471 U.S. 386, 39 1.) D ecisions upholding warrantless searc hes of vehicles thus do not distinguish between searches conducted on parked vehicles or vehicles that
have been stopped by police on a highway. ( People v. Superior Court (Overland) (1988) 203 Cal.App.3d 1114, 1119 .) Here, l aw enforcement could reasonably conclude the Camaro was connected to the shooting and could contain evidence relevant to the crime

. (Cf. People v. Superior Court ( Hampton ) (1968) 264 Cal.App.2d 794 , 798 [search of vehicle reasonable where witness identifi ed car as belonging to potential suspect of burglary, even though intruder fled on foot].) The trial court found t he car was parked in a haphazard way , partially blocking a resident’s driveway and directly across the narrow street from where McMahan’s tru ck was shot

. It was there when Officer Fuentes arrived shortly after 4:30 a.m. The resident informed Fuentes that he did not recognize the car and it had not been parked there at approximately
2:00 a.m. when he left for work

. The o fficer conducted a record check of the license plate and discovered it was a rental car. The doors were unlocked , and the keys were in the ignition, suggesting that the driver left the car quickly. S hell casings and a loaded firearm magazine were located on the street a few feet from the car. Across the street from the Camaro was a vehicle riddled with bullet holes that had crashed into two parked cars

. The se circumstances

— the Camaro’s proximity to the target of the shooting , bullet casings , and loaded magazine, its arrival on the scene shortly11 before the shooting, its unfamiliarity to nearby residents, and the indications it was a rental car, which the driver hastily parked and fled

— i n their totality
established “a fair probability ” that the vehi cle and its occupants were connected to the shooting and that the car would contain evidence of that
crime

. (See Farley , supra , 46 Cal.4th at p. 1098.) We agree with the magistrate that there was probable cause to search the Camaro

. Tousant disputes thi s conclusion by narrowly examining the individual circumstances one by one , arguing none of them alone establishes probable

cause

. For instance , he claims the Camaro’s proximity to the shooting and bullet casings does not itself establish probable cause for an automobile
search

. He further contends the red Camaro is unconnected to the Oakland shooting because it does not match the description of the suspect’s vehicle

—

a n older, white four

- door sedan

. This analysis is flawed. The relevant inquiry is whether the totality of the circumstances would lead a person of “ordinary caution or prudence to believe, and conscientiously to entertain , a strong susp icion that the object of th e search is in the particular place to be searched.” ( People v. Dumas (1973) 9 Cal.3d 871, 885 .) Here, as we have said, based on all of the facts known to them at the time, the police could reasonably believe the Camaro was connected to and would yield evidence of
the crime. Because we conclude there was probable cause to search the Camaro ,

we need not address the People’s additional arguments that Tousant abandoned the car and therefore lacked standing to challenge the search

. We also do not address their claim that the smell of unburnt marijuana justified the search of the car.12 D. There Was Probabl e Cause to Seize Tousant’s Cellphone. For similar reasons, the police properly seized Tousant’s cellphone 3

— found in plain view, in “ the clearly visible portion of the center console near the left

- hand side of the center console cup holder, close to the r ight edge of the driver’s seat.” We are unconvinced by Tousant’s arguments that seizure of the cellphone was unjustified because cellphones are not inherently illegal items, the cellphone lacked any nexus with suspected criminal activity, and law enfor cem ent unduly delayed obtaining a search warrant to search the contents of the cellphone after it was seized

. Like searches, seizures must be reasonable on the facts presented. ( People v. Lenart (2004) 32 Cal.4th 1107, 1119 .) Officers may seize evidence in plain view “from a position where the officer has a right to be , ” including a vehicle he or she is entitled to search. ( People v. Webster (1991)
54 Cal.3d 411, 431.) “ I n the cell phone context . . . it is reasonable to expect that incriminati ng information will be found on a phone regardless of when the crime occurred.” ( Riley v. California (2014) 573 U.S. 373, 388, 399 ( Riley ) [defense concession that officers can seize and secure cell phones discovered during proper searches of a defendant ’ s person incident to arrest is “sensible”].) Here, police reasonably believed the Camaro and its driver were
connected to the shooting. Based on the totality of the circumstances we have

3 Tousant also challenges the search and seizure of additional items from his car, including a rental agreement, cigarette butt, and an interim driver’s license, but he fails to advance any arguments specifically addressing those items in his opening brief . He thus fails to meet his burden on appeal demons trating error. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [“ ‘ “ We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error

— it will not be presumed ” ’ ”].)13 already discussed, t here was probable cause to believe the cellphon e would contain evidence related to the shooting, and therefore it was properly seized.
Nor was law enforcement’s 15

- day retention of Tousant’s cellphone before securing a warrant to search its contents unreasonable, a n argument Tousant raises for the first time on appeal

. Seizure s , which affect a person’s possessory interest in an item, are less intrusive than searches , which implicate a person’s privacy interests . ( Segura v. U.S. (1984) 468 U.S. 796, 806, 812 ; People v. Tran (2019) 42 Cal.App.5th 1, 8 .) The interest in protecting “ incriminating evidence from removal or destruction can supersede, at least for a limited period, a person’s possessory interest in property, provided that there is probable cause to believe that that property is associated with criminal activity.” ( Segura , at p. 808.)
T he record does not support Tousant’s claim he had an “undiminished possessory interest” in his cellphone that was affected by the delay in securing a search warrant

. Tousant does not claim he requested the return of the cellphone

. Nor does he cite any evidence below that he ever sought return of the cellphone. ( U.S. v. Johns (1985) 469 U.S. 478, 487 [ delay in obtaining a warrant did not adversely affect possessory interests where defendant did not seek return of property and failed to allege or prove the delay “ adversely affected legitimate interests protected by the Fourth Amendment ” ].) 4

4 At trial, Tousant testified that he did not retrieve the car because he “didn’t want to deal with it.” The People also offered evidence at trial indicating Tousant began storing data on a different phone on August 20, 2015 , the date policed seized the cell phone fr om the Camaro

. The People argue this evidence shows Tousant had no intention of retrieving the seized cellphone

. We need not rely on this evidence, which was elicited well after the magistrate and trial court had denied the motions to suppress.14 T he police , on the other hand, had a substantial interest in extracting data from t he cellphone

. Based on the evidence gathered at the scene of the Oakland shooting and subsequent investigation s , which we discuss further below, Officer Arreola believe d Tousant was involved, and the cellphone would contain evidence relevant to that event. Given the lack of any showing by Tousant that his possessory interests were affected by the two

- week delay in searching the contents of cellphone retrieved from the Camaro , Tousant does not demonstrate the length of the s eizure was unreasonable.
E. The Search Warrant for Tousant’s Cellphone W as Valid.
Tousant contends Arreola’s limited September 2 warrantless search of Tousant’s cellphone to identify its corresponding telephone number was illegal

. According to Tousant, w ithout th is info rmation confirming his ownership of the cellphone, there was no probable cause to believe the phone contained any evidence of the Oakland shooting . T h us, he argues there was no basis to issue a warrant to search the phone , and in any event, the resulting warrant was overbroad

. 5 When determining w hether probable cause existed for the issuance of a search warrant, we assess the totality of the circumstances under which the
warrant issued. ( Illinois v. Gates (1983) 462 U.S. 213, 230

- 235 ; § 1525 [ “ A search warrant cannot be issued but upon probable cause, supported by affidavit ” ] .) Doubts as to whether an affidavit supporting a search warrant establish es probable cause are resolved in favor of the validity of the warrant. ( Peopl e v. Frank (1985) 38 Cal.3d 711, 722.)

5 We do not address Tousant’s challenge to the scope of information sought by the warrant to search Tousant’s cellphone, an argument he failed to raise in the trial court and thus forfeits on appeal. (See People v. Tully (2012) 54 Cal. 4th 952, 979

- 980 [specific claim not raised in defendant’s suppression motion in the trial court is forfeited on appeal].)15 As a threshold matter, the People concede, and we agree, that Arreola’s initial pre

- warrant search of Tousant’s cellphone on September 2, 2015 , was illegal. The U.S. Supreme Court in Riley , supra , 573 U.S. 373 , concluded officers may not engage in a warrantless search of “those areas of the phone where an officer reasonably believes that information relevant to

. . . the arrestee’s identity” may be discovered. ( Id. at p. 399 [addressing limited search of a cellphone seized incident to arrest].) Instead, absent an emergency, a warrant is required to search the digital contents of a cellphone. ( Id . at p. 401.) By turning the cellphone on, using guesswork to determine its password, unlocking it, lookin g through the settings folder and viewing a photo, Arreola violated Tousant’s Fourth Amendment rights. Thus, the information she gleaned from this limited search of Tousant’s cellphone

— the telephone number and photograph of his driver’s license

— must be ex cised from the affidavit supporting the search warrant to view the digital contents of the phone. ( People v. Weiss (1999) 20 Cal.4th 1073, 1081 ( Weiss ) .) Where, as here, “ a criminal investigation involved some illegal conduct,
courts will admit evidence derived from an ‘ independent source ’ ”

— evidence

“ ‘ that has been discovered by means wholly independent of any
constitutional violation. ’ ” ( Weiss , supra , 20 Cal.4th at p. 1077 .) For search warrant affidavits containing “ both information obtained by unla wful conduct as well as untainted information, a two prong

- test applies to justify application of the independent source doctrine. ” ( People v. Robinson (2012) 208 Cal.App.4th 232, 241.) “ First, the affidavit, excised of any illegally

obtained information , must be sufficient to establish probable cause. ” ( Ibid .) Second, the evidence must support a finding that ‘ the police subjectively would have sought the warrant even without the illegal conduct. ’ ” ( Ibid .)

“ [W]e determine de novo whether the search warrant affidavit is sufficient to16 establish probable cause . . . absent the information obtained by the illegal [conduct]. ” ( Ibid .)
Even without th e tainted information derived from the illegal search

— the cellphone number and driver’s license i nformation confirming Tousant’s connection with the cellphone

— Ar r eola’s affidavit established probable cause to search the cellphone. ( See Weiss , supra , 20 Cal.4th at p. 1081 .) M ost of
the affidavit detailed Arreola’s investigation of Tousant before the September 2 warrantless search of his phone. Arreola tied Tousant to the Oakland shooting because his rental car, the Camaro , was found at the scene of the shooting with his rental agreement inside it

. The af fidavit pointed out that the cellphone was recovered from the Camaro. Arreola chronicled
Tousant ’s history of law enforcement contacts , including prior felony convictions for robbery and failure to register as a sex offender, his son’s death from a shooti ng, his presence at the hospital holding a loaded black shotgun in apparent violation of laws prohibiting felons from possessing firearms and ammunition , and his involvement in a shooting in July 2015 in which he was shot in the leg . She described Tousant ’s arrest on August 31,
2015 , after police found him sitting in the Chev rolet Impala , the vehicle used by the suspect in the Berkeley shooting

. Items found in the Impala during
that arrest further linked Tousant with the two shootings. These included a 7.62 by 39

- caliber bullet casing of the same type and size as those found at
the Berkeley and Oakland shooting s and a loaded 9

- millimeter Ruger in the purse of a female passenger (Street) in the vehicle. She pointed out th at a 9

- millimeter handgun was also used at the Oakland shooting. Arreola reported
the passenger denied knowledge of the 9

- m illi m eter gun and stated that Tousant had handed the gun to her to place inside her purse and, after they17 were arrested, had urged h er to “take it” saying it would only be a misdemeanor, and promised to bail her out

. Tousant insists the information Arreola obtained from the illegal September 2 search of his phone was essential to the issuance of the warrant. Pointing to the fact the cellphone was found next to an interim driver’s license belonging to another individual , Tousant claims there was no evidence the phone was his

. Tousant ignores th e facts that t he cellphone was recovered from the Camaro on the driver’s side of the car and that a rental agreement in his name was also found. T hese circumstances made i t reasonable to infer the cellphone belonged to Tousant

. Probable cause requires onl y a fair probability, not a certainty. ( Farley , supra , 46 Cal.4th at

p. 1098 .) The location of Tousant’s arrest after he was found driving the same Chevrolet Impala as that involved in the Berkeley shooting, the presence of his rental Camaro unlocked and with keys in the ignition at the scene of the Oakland shooting, the ballistics evidence potentially connecting him with both shootings, and his history of involvement with guns and shootings established probable cause that Tousant was involved in both sho otings. And

t here was a nexus between the shooting s and the cellphone. Arreola explained that based on her experience working in a felony assault unit , perpetrators often use their phones to communicate plans for assault , to retain photos of themselves with weapons , and to brag about completed
assaults. (See Riley , supra , 573 U.S. at p. 399; see, e.g., People v. Price (2017) 8 Cal.App.5th 409, 427, 431 [murder case in which text messages strongly implicated defendant as shooter and evinced in tent to kill]; In re K.B. (2015) 238 Cal.App.4th 989 , 994 [incriminating photos extracted from cellphone showed juveniles posing with handguns]; People v. Hollinquest (2010)18 190 Cal.App.4th 1534, 1544 [incriminating cellphone evidence linked co

defendants to each other and to victim by multiple calls on day of murder and placed them in close proximity to each other and to scene of murder]. ) Testimony further establishe d Arreola would have sought the warrant

even without the tainted cellphone information

. ( See Weiss , supra , 20 Cal.4th at p. 1079.) B efore she searched the cellphone , s he confirmed Tousant’s identity and listed him as a suspect for the Oakland shooting based on the information set forth above

. The trial court found the officer’ s September 2 cellphone search did not negate her investigation efforts

. (See Murray v. U .S. ( 1988) 487 U.S. 533 , 542 [ warrant fails independent source rule if the illegally obtained information prompted the agent’s decision to seek the warrant or affected the m agistrate’s decision to issue the warrant].) The facts amply support the trial court’s finding that the police would have sought and obtained the warrant even without obtaining Tousant’s telephone
number or dr iver’s license information

. 6 (See id

. at pp. 543

- 544 [remand required where trial court makes no finding about whether illegal conduct was irrelevant to later securing warrant].) Both prongs of the independent source doctrine were satisfied here, and

t here was no error in the trial court’s ruling on Tousant’s suppression
motion. 7

6 Given this co nclusion, it is unnecessary to address Tousant’s additional argument that the information downloaded from the cellphone would not have been inevitably discovered. Contrary to Tousant’s assertions, the trial court expressly stated it was not relying on the inevitable discovery rule to deny Tousant’s suppression motion.

7 In light of our conclusion, we do not address Tousant’s prejudicial error argument.19 II.
Tousant Did Not Require Miranda Warnings Because He Was Not Interrogated

. Tousant contends the trial court erroneously admitted self

incriminating statements made to Sergeant Sanchez during a custodial interrogation about his son’s murder investigation, and without receiving advisements required under Miranda v. Arizona 384 U.S. 436 ( Miranda )

. There was no error. A. The Relevant Facts and Proceedings Below
Tousant wa s arrested after the August 31, 2015 traffic stop, and officers transported him to the Berkeley Police Department for questioning. Berkeley officers advised him of his Miranda rights, Tousant stated he understood , and he continued to participate in a conversation with them

. On September 1, 2015, Sanchez learned Tousant was in custody for firearms charges arising from the traffic stop. He had no knowledge that Berkeley police were investigating Tousant for the Berkeley shooting

. Instead, Sanchez was interested in information Tousant had about his son’s murder

. On that basis, he obtained a removal order for Tousant , transported him to Oakland , and interviewed him in an interrogation room

. Sanchez did not
read Tousant his Miranda rights , did not ask T ousant about the Berkeley shooting and did not ask him about any other shootings he might have committed in the past. During a recorded conversation, Tousant described his son’s
involvement in a Berkeley gang called “Waterfront.” Waterfront was feuding
with another Berkeley gang , Five Finga Mafia , partially because Tousant Jr. may have stole n a neck chain from a Five Finga Mafia member. In a social media post, the Five Finga Mafia gave Waterfront an ultimatum to return the chain or face a violen t feud

. The chain was not returned. Tousant20 believed his son was invited to a dice game under false pretenses

— Nigel Blackwell, a Five Finga gang member who went by the alias “Five Finga NOC,” waited in a nearby apartment for Tousant’s son to leave the ga me before shooting him. Before trial, Tousant moved to exclude his statements to Sanchez, arguing Sanchez failed to Mirandize him. The trial court heard testimony from Sanchez, viewed Sanchez’s videotaped interview of Tousant and ruled Tousant’s statements admissible

. 8 According to the trial court, Tousant was in custody but appeared willing to talk to Sanchez about peopl e he knew or events that occurred in Tousant Jr.’s murder case. The trial court further found Sanchez lacked any kn owledge about the Berkeley shooting , lacked specifics about the firearm possession charges and limited his questioning to the circumstances of Tousant Jr.’s death. After noting that an “[i]nterrogation is a situation where the police are engaging in condu ct that might reasonably be interpreted as being likely to elicit an incriminating response from somebody”, the trial court observed that i n the circumstances
here “it would be hard” for Sanchez to elicit information about a case “he knew nothing about.”
B. The Relevant Law
The Fifth Amendment privilege against self

- incrimination requires officers to inform criminal suspects , before questioning, of the ir right to remain silent, and that statements made may be used against them in court

. ( Miranda , supra, 384 U.S. at p. 479.) That right attaches during a custodial “interrogation.” ( Ibid .) A n interrogation refers to express questioning or its functional equivalent , including “ any words or actions on the part of the

8 There is no video recording or transcript of the interview in the record.21 police ” that the “ police should know are reasonably likely to elicit an incriminating response from the suspect .” ( Rhode Island v. Innis (1980)
446 U.S. 291, 300

- 302 , fn. om itted ( Innis ) .) “The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with a n added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect
thus a mounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should h ave known were reasonably likely to elicit an incriminating response.” ( I nnis, at pp. 301

- 302.) Whether an interrogation occurred is determined by “an objective test according to which we ‘analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.’ ” ( People v. Morse (1969)
70 Cal. 2d 711, 722 .) “Not every question directed by an officer to a person in custody amounts to an ‘interrogation’ requiring Miranda warnings. The standard is whether ‘under all the circumstances involved in a given case, the questions are “reasonably likely to elicit a n incriminating response from the suspect.” ’ [Citation.] This is an objective standard. ‘The subjective intent of the [officer] is relevant but not conclusive. [Citation.] The relationship of the question asked to the crime suspected is highly releva nt. [Citation.]’ ” ( People v. Wader (1993) 5 Cal.4th 610, 637.) “We review the trial court’s22 finding regarding whether interrogation occurred for substantial evidence or clear error.” ( People v. Clark (1993) 5 Cal.4th 9 5 0, 985, overruled in part on
oth er grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) C. Analysis There is no dispute that Tousant was in custody when he made his statements to Sanchez. Rather, the issue is whether Tousant’s statements were the product of an interrogation. (See Innis , supra , 446 U.S. at p. 300 .) For the reasons set forth below, we conclude that substantial evidence supports the trial court’s finding that there was no interrogation and thus no violation of Miranda

. 1. Incriminating Statements A bout the Berkeley Shooting Tousant was in custody for the August 31, 2015 firearms offense, not the Berkeley shooting, contrary to Tousant’s assertions. In fact, he was not arrested for the Berkeley shooting until October 2015. Sanchez was not a Berkele y police officer; he was an Oakland officer. He did not know about the Berkeley s hooting, and t here was no reason for him to have believed the interview about Tousant Jr.’s murder would elicit incriminating information
about the firearm possession charges for which he was in the custody of the Berkeley police . (See People v. Dement (2011) 53 Cal.4th 1, 26

- 27 [questions about unrelated offenses permissible because they could not be reasonably construed as calling for an incriminating response].)
Moreove r, the trial court found Sanchez ’s questions were designed to elicit information about Tousant’s son’s murder investigation, not about any offense of which Tousant was in custody or even suspected

. (See People v.
Elizalde (2015) 61 Cal.4th 523, 537 [ although not a necessary showing, “design or intent of the police is relevant to the extent it demonstrates what the police should have known about the nature of the questioning”] ; People v.23 Wader , supra , 5 Cal.4th at p. 637 [w hen assessing whether there was an interrogation for the purposes of Miranda , the “ ‘ relationship of the question asked to the crime suspected is highly relevant ’ ”] .) The trial court further found Tousant was willing to offer Sanchez information he colle cted about his son’s murder. Relying on People v. Anthony (2019) 32 Cal.App.5th 1102 ( Anthony ) , Tousant argues Sanchez should have known question ing Tousant about his son’s murder would elicit incriminating information about offenses for which
Tousant was being investigat ed

. But t he circumstances here are different from those in Anthony

. In that case , Anthony saw his fellow gang member shot and killed in Oakland

. ( Anthony , supra, 32 Cal.App.5th at p. 1115.) Even though he was close by, Anthony was not shot. ( I bid .) One month later, Berkeley police
arrested Anthony , who was a suspect in the subsequent retaliatory killing of
the brother of a rival Berkeley gang member

. ( Id . at pp. 1108

- 1109, 1112 .) After his arrest, Anthony was transferred to Oakland police for questioning

. ( Id . at p. 1117 .) During questioning, the Oakland police acknowledged their

awareness that Anthony was a suspect in a Berke ley murder that might be gang related and possibl y relate d to the earlier Oakland shooting

. ( Id . at

p p

. 1114

- 1116, 1124.) The Oakland officers also had reason to know about the relationship between the two cases based on Anthony’s previous
statements to them about his gang’s feud with the Berkeley gang. ( Id

. at

p. 1124. ) Despite this, the officers pursued lines of questioning that called for responses bearing directly on the Anthony’s motive and intent in the crime of
arrest

— the Berkeley s hooting

— and this c ourt determined the y should have provided Miranda warnings before questioning him further

. ( I d

. at pp. 1124. )24 Here, by contrast, Sanchez had no knowledge of Tousant’s possible involvement in the Berkeley shooting. Nor did he have reason to know. ( See Anthony , supra , 32 Cal.App.5th at p. 1124.) No one had informed Sanchez
that Tousant was a suspect in that shooting. We are not persuaded by Tousant’s claim Sanchez was required to ascertain all the circumstances of
his August 31 arrest by Berkeley police, such as confirming Tousant was
arrested in the car used by the suspects in the Berkeley shooting

. Berkeley police informed Sanchez that Tousant was in custody on firearm possession charges, not charges involving a shooting. Sanchez did no t ask Tousant any questions about the firearms charges , and his questions about Tousant’s son’s murder were not likely elicit incriminating respons es bearing on those charges. T ousant cites no authority for the proposition that Miranda requires an officer who questions a witness about one crime must determine whether a defendant is suspected by another police department of a crime for
which he has n ot been charged.
Nor are we persuaded by Tousant’s contention that Sanchez’s past
statements to Tousant

— discouraging him from retaliat ing against anyone for his son’s murder

— demonstrate that Sanchez knew or should have known his questions were reasonably likely to elicit an incriminating response from the
Tousant. Sanchez’s concern that Tousant might attempt to retaliate against the rival gang in the future did not require him to avoid questioning Tousant about his son’s murder

— a crime of which he was in no way suspected

— b ecause his answers might potentially be incriminating in an entirely different and, as far as he knew, merely potential future crime. (See Innis , supra , 446 U.S. at pp. 301

- 302.) Finally, w hile Tousant argues that it “strains creduli ty” that Sanchez
did not know Tousant was a suspect in the Berkeley shooting , t he trial court25 heard Sanchez’s testimony and found otherwise , and we defer to its credibility determinations and factual findings

. ( See People v. Vance (2010) 188 Cal.App.4th 1 182, 1211.)
2. Incriminating Statements About the Oakland Shooting For somewhat different reasons, we reject Tousant’s additional argument , first raised on appeal, that Sanchez should have known his questioning would elicit an incriminating response regarding the Oakland shooting

. 9 Sanchez was not questioned at the hearing on the Miranda issue about whether he was aware of the Oakland shooting and Tousant’s possib le involvement

. On th e record before us, he has fail ed to show Sanchez should have known his questions would likely elicit incriminating testimony about the Oakland shooting

. First, Tousant relies on a police bulletin prepared and distributed by Office r Arreola on August 27, 2015 , to Oakland Police Department sergeants and officers and seeking assistance to identify two suspects in the Oakland shooting. But t he bulletin itself is not in the record

. Instead, any information about the bulletin is contained in secondary sources

— Officer Arreola’s preliminary hearing testimony and the search warrant she also prepared to search the cellphone found in the Camaro. Although t he search warrant briefly mention s the bulletin , it prov id es little information about it. Arreola testified that the bulletin stated that a car was found with indicia indicating it was Tousant’s car but there was no probable cause to detain Tousant . The bulletin asked that she be notified if another officer c ontacted Tousant for some other reason.

9 Tousant did not make that argument in the trial court in his in limine motion seeking to exclude his statements to Sanchez. Tousant forfeited this argument by failing to raise it below, but the People do not argue forfeiture and so we shall address it.26 Second, Tousant relies on the search warrant because it suggests a connection between Tousant and the Oakland shooting , and it indicate s that Arreola , and therefore the entire Oakland Police Department, obtained additional significant information on August 31, 2015, the day before Sanchez interviewed Tousant. Specifically, Arreola learned that an Oakland officer had detained Tousant and two passengers that day because he was sitting in a c ar sought pursuant to a felony warrant relating to the Berkeley shooting inv estigation

. As we previously described, Berkeley police searched
the vehicle , yielding a handgun and a bullet casing in the rail of the driver’s
seat

. T he bullet casing was the same size as casings found at the scene of the shooting Berkeley was investigating. In the search warrant , Arreola note d that bullet casings of the same size had been found at the scene of the Oakland shooting

. Sanchez was not questioned at the suppression hearing about the bulletin , the search warrant or anything pertaining to the Oakland shooting or investigation

. Nor was he questioned about anything he may have learned from Arreola beyond what was in the warrant. He testified that he may have
talked to a Berkeley o fficer on September 1, before picking Tousant up from the jail. He learned that Tousant was i n custody for a firearms offense but
did not ask for details about that charge. He learned Tousant was not alone when he was stopped , but this was the only information he received. On this record, Tousant fails to demonstrate that Sanchez knew or should have known at the time he questioned Tousant about his son’s murder, that such questioning of Tousant would likely elicit incriminating27 statements

. 10 Thus, Tousant’s statements were not illegally obtained , and the trial court did not err by admitting them

. 11
III. The Trial Court Properly Admitted Evidence of Tousant’s Prior Acts

. Tousant contends the trial court abused its discretion by admitt ing evidence of certain prior uncharged crimes and bad acts under Evidence Code
section 1101

. We find no abuse of discretion here

. A. The Relevant Proceedings Below The prosecutor moved to admit the evidence that in April 2015,
Tousant stood outside the hospital where Tousant Jr. was brought for treatment, and while holding a firearm and ammunition, stated , “Fuck the police” and evidence that Tousant participated in t he Oakland shooting. T he trial court ruled evidence of both events was admissible under Evidence Code section 1101, subdivision (b)

. The trial court found the hospital incident tended to prove Tousant’s motive for committing the Berkeley shooting

— to exact revenge for his son’s murder

. For the Oakland shooting, the trial court explained it occurred at the supposed address of the person Tousant suspected of killing his son . This fact was pro b ative of Tou san t’s intent and

10 Tousant cites People v. Roberts (2017) 13 Cal.App.5th 565 for the proposition that an interrogation occurs if a defendant is questioned in a way that would incriminate him in a potential future case for a crime defendant has not committed or is not kno wn to have committed at the time. But as Tousant acknowledges, Roberts involved questions about gang affiliation, and the court reasoned that “an admission of gang membership always carries with it the incriminatory prospect of future enhanced punishment. ” ( Id . at p. 576.) Unlike admission of gang membership, statements about a crime committed by a third party against a family member or friend of the defendant do not “always carry with [them any] incriminatory prospect.”

11 In light of this conclusion, we do not address Tousant’s prejudicial error argument

.28 common plan to “find and address or deal with the people he thinks or thought might have been involved in his son’s shooting.”
T he trial court also found admitting these acts into evidence w ould not result in an undue consumption of tim e and would not confuse the jury. After the close of evidence, t he trial court instructed the jury that they “may, but are not required to, consider that evidence [of uncharged conduct] for the limited purpose of deciding whether the defendant had a motive to commit the crimes or offenses alleged in this case, or that the defendant had a plan to
commit the o ffenses or crimes alleged in this case.” It admonished the jury that the conduct could not be considered for propensity and was not sufficient on its own to support a conviction.
B. The Relevant Law While evidence of prior misconduct is inadmissible to prov e propensity to commit a crime on a particular occasion , uncharged crimes or bad acts are admissible to prove other facts, such as “motive, opportunity, intent, preparation, [or] plan.” (Evid. Code, §1101, subd s

. (a), (b).) A dmission depends on “ ‘(1) th e materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ ” ( People v. Kelly (2007) 42 Cal.4th 763, 783.) A jury may co nsider evidence of a person’s
conduct admitted under Evidence Code section 1101 , subdivision (b) if the conduct is proven by a preponderance of the evidence. ( People v. Leon (2015) 61 Cal.4th 569, 597.) C onsistent with Evidence Code section 352, “[t]he

p robative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of29 misleading the jury.” ( People v. Kipp (1998) 18 Cal.4th 349, 371.) We review trial court rulings admitting this evidence for an abuse of discretion

. ( Ibid .) C. Analysis
1. Tousant’s Conduct Outside the Hospital There was no abuse of discretion in admitting Tousant’s statements and actions outside the hospital , which were highly probative of his motive to commit the Berkeley shooting

. ( See People v. Thompson (2016) 1 Cal.5th 1043, 1114 [ uncharged conduct may be relevant to establishing motive if
there is a direct relationship between the uncharged conduct and an element of the charged offense ].) While motive is not an element of Tousant’s offenses, it is “ an intermediate fact ” probative of his intent

. ( Ibid .) T ousant’s possession of a shotgun and his statement, “Fuck the police” while standing outside the hospital where Tousant Jr. died tended to establish a motive to retaliate for his son’s death instead of relying on police and prosec utors to bring the killer to justice

. Although Tousant did not know who killed his son when he engaged in this conduct, t he victims of the Berkeley shooting included a suspected member of the Five Finga Mafia, the group Tousant
later believed was responsi ble for his son’s murder. That the gun Tousant held while standing outside the hospital was different from the gun used in the Berkeley shooting does not render this evidence inadmissible

. “[E]vidence of weapons unconnected to the crime may be relevant for other purposes” ( People v. Merriman (2014) 60 Cal. 4th 1, 81 ), such as motive, which “ ‘ is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and presen t crimes

. ’ ” ( Thompson , supra , 1 Cal.5th at p. 1114

. ) Furthermore, the court reasonably concluded admitting this evidence was not unduly prejudicial

. (See People v. K ipp , supra , 18 Cal.4th at p. 371 .)
To the extent Tousant contends this evidence allowed him to be characterized30 as a “gun

- toting criminal ,” it was simply cumulative of other evidence admitted at trial that Tousant possess ed guns (e.g. , photo show ing Tousant with two handguns and holding an assault rifle )

. (See People v . Gunder (2007) 151 Cal.App.4th 412, 417 [ “ evidence demonstrat[ing] criminal propensity is simply a factor to consider in assessing the prejudice from its admission; it is not a basis for exclusion unless the evidence otherwise lacks any probative value ” ]

. ) We also presume the jury , as instructed, only considered this incident for the limited purpose of establishing Tousant’s
motive to commit his charged offenses , not his propensity to carry firearms

. (See People v. Holt (1997) 15 Cal.4th 619, 662 [ “ [j]urors are presumed to understand and follow the court ’ s instructions ” ].) Admitting this evidence was not an abuse of discretion.
2. The Oakland Shooting Similarly, the court properly found the Oakland shooting e vidence probative of Tousant’s common pla n to find and harm people he believed to
have killed his son. “[E] vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. ” ( People v. Ewoldt (1994) 7 Cal.4th 380, 403 ( Ewoldt ). ) To prove the existence of a common design or plan, there must be a “ great er degree of similarity ” between the uncharged act and charged offense

. ( Id. at p. 402 [ the least degree of similarity is required to establish intent, and the greatest degree of similarity is required to establish identity ].) The “common features must i ndicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” ( Id

. at p. 383. )31 T he Oakland and Berkeley shootings shared a requisite level of common features

. B oth inc ident s involved shooting at victims who m Tousant believed to be members of the Five Finga Mafia

— Kevin Green e and Nigel Blackwell

. T ext message s on Tousant’s cellphone evidenced his belief Nigel Blackwell lived at 1314 105th Avenue, the address of the Oakland shooting. Kevin Green e was a victim in the Berkeley shooting , which occurred near San Pablo Park, an area where the Five Finga Mafia was known to operate. The shootings occurred only five days apart and we re executed by firing multiple shots at the supposed targets

. 7.62 by 39

- millimeter ammunition or casings

— l ike the bullet found in Tousant’s car during the August 31 traffic stop

— were recovered from the scenes of both shootings.
Tousant argues the Oakland shooting was in sufficiently similar to the Berkeley shooting to be admissi ble. Primarily, he claims the suspects’ description s and the car allegedly used in the Oakland shooting

— an ol der four

- door vehicle

— d o not match him or his car

. But greater similarity between the uncharged conduct and charged offense is required for demonstrating identity, not the existence of a common plan. (See Ewoldt , supra , 7 Cal.4th at p p . 402

- 403 .) T he manner in which the shootings were executed, the short timeframe b etween the two crimes, and the fact that the intended victims were affiliated with the same gang demonstrate a degree of
similar ity sufficient to support an inference that Tousant acted according to a common plan to retaliate against his son’s alleged kill ers. (C f. People v. Grant (2003) 113 Cal.App.4th 579 , 589 [taking similar types of items, computer equipment, from similar places, empty schools after hours, by prying open doors or windows was not sufficiently similar to demonstrate common plan particula rly where burglaries occurred three years apart].)32 We also disagree that the evidence failed to establish Tousant’s involvement in the Oakland shooting, thus rendering this evidence unduly prejudicial. Tousant’s Camaro was parked across the street from the shooting, his text messages and internet searches identif ied the address of the shooting

— a preponderance of the evidence established that Tousant was at the scene of and involved in the Oakland shooting. (See People v. Le on , supra , 61 Cal.4th at p. 597 .) The trial court’s instructions to the jury that an uncharged offense does not sufficiently support a conviction of the charged offense

— here, the Berkeley shooting

— o n its own mitigated any prejudicial effect of admitting t he Oakland shooting evidence. (See Ewoldt , supra , 7 Cal.4th at p. 405 [noting “jury might have been inclined to punish defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses ” ].) The trial court did not abuse its discretion by admitting evidence of the Oakland shooting. Finally, we reject Tousant’s additional claim that admission of these prior acts violated his constitutional rights. The “ ‘ “ routine application of
state eviden tiary law does not implicate [a] defendant ’ s constitutional rights. ” ’ ” ( People v. Mills (2010) 48 Cal.4th 158, 194.)
IV. The Trial Court Properly Denied Tousant’s Motion to Sever H is Offenses. Tousant argues the trial court erroneously denied his request to sever his Berkeley assault charges from his Oakland firearm possession charges. He claims his offenses did not meet the statutory criteria for joinder under section 954, and the trial court abused its discretion by allowing a weak case to be bolstered by his stronger Oakland firearm possession case. There was no error or abuse of discretion in the trial co urt’s ruling.33 A. The Relevant Law Two or more different offenses “connected together in their commission” or “ of the same class of crimes or offenses ” may be charged and tried together in one case. (§ 954. ) A court may further consolidate to one or more

ac cusatory pleadings if “ filed

. . . in the same court .” ( Id .) “ ‘Offenses of the same class are offenses which possess common characteristics or attributes.’ ” ( People v. Landry (2016) 2 Cal.5th 52, 76 [possession of a weapon while in custody and assault by a life prisoner share common characteristics of offenses in custodial context and prison

- made weapons and served same purpose of preventing assault by armed prisoners]; cf. People v. Madden (1988) 206 Cal.App.3d Supp.14, 19 [charges of possession of hy podermic needle and failure to appear have no common characteristics or attributes].) Courts may sever properly joined offenses “in the interests of justice and for good cause shown , ” but there is a preference for joinder in the interests of judicial econ omy and efficiency. (§ 954 ; People v. Simon (2016)
1 Cal.5th 98, 122 .) If the statutory requirements for joinder are satisfied, a defendant establishes an abuse of discretion denying severance “ only on a clear showing of prejudice .” ( People v. Lucky (1988) 45 Cal.3d 259
, 277 .) “Refusal to sever may be an abuse of discretion where: (1) evidence of the crimes to be jointly tried would not be cross

- admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one o f the charges carries the death penalty or joinder of them turns the matter into a capital case.” ( People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 282.) The potential prejudice from the joint trial is then34 balanced against the benefits to the state. ( People v. S oper (2009) 45 Cal.4th 759, 775 ( Soper ) .)
B. Analysis
T he statutory requirements for joinder were satisfied here. B ot h of Tousant’s criminal complaints charged him with felon in possession of a firearm

— counts 8 and 11

. (§ 29800, subd. (a)(1 ).) Those and Tousant’s other firearms charges

— f elon carrying a concealed, loaded, unregistered firearm in a vehicle (§§ 25400, subds. (a)(1), (c)(1), (c)(6)), felon carrying a loaded, unregistered firearm in a city (§§ 25850, subds. (a), (c)(1), (c) (6))

— and the Berkeley assault with firearm charge s are in the same class because they all involve the illegal use of firearms. 12 To the extent Tousant argues the statutes for assault and firearm charges are in different parts of the Penal Code and thus no t in the “same class , ” we disagree. The statute does not
mandate any such requirement

. (See People v. Landry , supra , 2 Cal.5th at

p. 76.)
Nor did the trial court abuse its discretion by rejecting Tousant ’s
motion to sever the joined offenses

. Tousant concedes most evidence from the Oakland traffic stop would be cross
- admissible in a separate trial for the Berkeley shooting

. ( See People v. Carter (2005) 36 Cal.4th 1114, 1154 [cross

admissibility alone sufficiently dispels any prejudice] .) First, Tousant was

12 Various cases explain the legislative purpose behind these firearm statutes. (See, e.g., People v. Bedolla (2018) 28 Cal.App.5th 535, 552 [purpose of § 25850, subd. (a) to address the hazard presented by carrying loaded firearms in public]; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1409 [legislative intent of § 12021, now § 29800, to “ ‘ “ limit as far as possible the use of instruments commonly associated with criminal activity ” ’ ” and presumption “ ‘ the danger is greater when the person possessing the concealable firearm has previously been convicted of felony ’ ”]; People v. Martinez (1987) 194 Cal.App.3 d 15, 20 [noting L egislature instituted specific punishment for assaults committed with firearms in § 245].)35 arrested for his August 31 firearm possession offenses in the same car used during the Berkeley shooting, the white Chevrolet Impala. Indeed, police initiated the stop b ecause they sought the Impala in relation to a serious crime. Second, a search of the Impala during the traffic stop y ielded a 7.62 by 39

- caliber bullet , the type of bullet used in the Berkeley shooting. Tousant
nonetheless argues the 9

- millimeter handgu n found in his car during the Oakland traffic stop would not be independently admissible in a separate trial for the Berkeley shooting

. Even assuming we agree, that fact does not conclusively establish prejudice. ( Soper , supra , 45 Cal.4th at p. 775 [ in the absence of cross admissibility, courts proceed to consider the other factors for assessing “spill

- over” effect ]

. )
The additional section 954 factors support the trial court’s order

. Tousant does not contend the charges are likely to unusually inf lame the jury or that any of the charges are capital offenses. (See People v. Gonzales and Soliz , supra , 52 Cal.4th at p. 282 .) Instead , he claims joinder impermissibly bolster ed a weak case

— the Berkeley shooting

— with a strong one

— the Oakland firearm possession

. A lthou gh the evidence supporting Tousant’s Berkeley assault offense is circumstantial , the evidence for both charges is strong. Tousant’s text messages, cellphone tower re cords establishing Tousant’s location during the shooting, and his possession of the same car and bullets used in the Berkeley shooting tended to prove he committed the Berkeley assault. (See Soper , supra , 45 Cal.4th at p. 781 [ “ A mere imbalance in the evidence, however, will not indicate a risk of prejudicial ‘ spillover effect ’ ” ].) On balance, Tousant cannot demonstrate any prejudice outweighed the benefits of joinder. (See i d

. at p. 782 [ severance of joined charges denies sta te benefits of efficiency and conservation of resources] .)36 We reject Tousant’s further claim that joi ning his offenses in a single trial was so grossly unfair as to violate his due process rights. While we “ still must determine whether, in the end, the joinder of counts

. . . for trial resulted in gross unfairness depriving the defendant of due process of law , ” nothing in the record supports his assertion

. ( People v. Rogers (2006)
39 Cal.4th 826, 851 .) In a ddition to rehashing his arguments regarding prejudice that we have already rejected , Tousant claim s joinder allowed the prosecutor to impermissibly argue the handgun obtained from the Oakland traffic stop was used in the Berkeley shooting

. But t he prosec utor expressly informed the jury that that gun was not used in the Berkeley shooting.
Tousant further complains the jury was not instructed that evidence for one charge may not be considered when determining his guilt for another charge. However, there is no requirement that the trial court provide such
instruction , and the trial court did instruct the jury with CALCRIM
No. 3515, “Multiple Counts: Separate Offenses (Pen. Code, § 954),” stati ng “Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” (See CALCRIM No. 3515 ; People v. Geier (2007) 41 Cal.4th 555, 578

- 579 .) Having concluded Tousant did no t suffer any prejudice from his joint trial, we may also “ reject his contention that the joint trial violated his due process rights

. ” ( People v

. Sapp (2003) 31 Cal.4th 240, 259

– 260 .)
V. Substantial Evidence Supports Tousant’s Assault Convictions

.

Tousant argues there was insufficient evidence to support his conviction of three counts of assault with firearm (§ 245 , subd. (a)(2) (counts 2

- 4 ) )

. Tousant concedes bullets were fired at 2806 Mabel Street. But
he claims there was insufficient evidence that David Conerly, Kevin Green e ,37 and Jocko Milan were standing close enough to the house , and thus the bullets, to establish that they were victims of the assault. We are unpersuaded

. A. The Relevant Law Challenges to the s ufficiency of the evidence supporting a conviction requires review ing the entire record in the light most favorable to the judgment to assess whether it contains substantial evidence

— “ ‘ evidence that is reasonable, credible and of solid value

— such that a r easonable trier of fact could find the defendant guilty beyond a reasonable doubt

. ’ ” ( People v. Golde (2008) 163 Cal.App.4th 101, 108 .) “ Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that
evidence. ” ( In re Michael D. (2002) 100 Cal.App.4th 115, 126 .) When reviewing the sufficiency of the evidence, w e do not resolve any credibility issues or evidentiary conflicts. ( People v. Zamudio (2008) 43 Cal.4th 327,
357 .) Instead, w e presume “in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ( People v. Kraft (2000) 23 Cal.4th 978, 1053 .) Section 245 , subdivision (a)(2) provides: “ Any person who commits an assault upon the person of another with a fir earm shall be punished by imprisonment

. . . . ” A ssault “requires only a general criminal intent and not a specific intent to cause injury.” ( People v. Williams (200 1) 26 Cal.4th 779,
782 .) T he defendant must have “(1) willfully committed an act which by its nature would probably and directly result in the application of physical force against another and (2) was aware of facts that would lead a reasonable person to realize this direct and probable consequence of his or her act. ” ( People v. Aznav oleh (2012) 210 Cal.App.4th 1181, 1186 .) A defendant may be convicted of multiple counts of assault when shooting into a group of38 people. (See , e.g., People v. Riva (2003) 112 Cal.App.4th 981, 999 [“when the defendant shoots into a group of persons prima rily targeting only one of them, the defendant can be convicted of assault with a deadly weapon as to the nontargeted members of the group”].)
B. Analysis

There was substantial evidence the shots were fired into the group consisting of Conerly, Green e , and M ilan, 13 thus supporting a finding all three were victims of assault. The shots fired from the Impala focused on the area of 2806 Mabel Street

— a bullet shattered on e of the windows, and the driveway and front stairs of the house were riddled with bullet ho les. Accounts from several witnesses established Conerly, Green e , and Milan were just outside 2806 Mabel Street before the shooting occurred. Mario Thomas , a witness, told police that he was hanging out at that house with Milan, Conerly, and Green e shortly before the shooting. He crossed the
street to his car and , while there, saw the Impala stop “ near ” where Conerly, Green e , and Milan were still hanging out. He then heard 10 to 12 shots fired, causing him to fall to the ground under his car. Based on the evidence that the Impala pulled up near where Conerly, Green e , and Milan remained shortly after Thomas crossed the street , and the shots were fired from the Impala towards the house where the three were hanging out , the jury could reasonably infer Green e , Conerly, and Milan were in an area likely to be hit by a bullet. Tousant’s claim that a pre
- trial statement by Green e noting that he was with his friend at San Pablo Park before the shooting and implying he

13 Rashad Jacob, who was also part of this group, was shot, and Tousant does not contest the sufficiency of the evidence supporting his convicti on of assault against that victim.39 was not within the line of fire, does not change this result. (See People v.
Z

amudio , supra , 43 Cal. 4th at p. 357 [“ ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the

. . . jury to determine the credibility of a witness and the truth or falsity of the facts u pon which a determination depend s ’ ”].) Tousant ’s additional argument that Green e , Conerly, and Milan were only “near” the Impala and thus not sufficiently close to the line of fire
is no more succes s ful

. The shots were fired over a large area where the three

men congregated

— o fficers collected bullet shells from both 2806 and 2810 Mabel Street , the neighboring house. And although specific intent to target a person is not required to support a conviction for assault , 10 to 15 shots were fired directly at one of the men who tried to run down the street and hid behind a bystander’s car

. (See People v. A znavoleh , supra , 210 Cal.App.4th at

pp. 1186

- 1187 ; c f. People v. Medina (2019) 33 Cal.App.5th 146, 153 [ for attempted murder conviction, substant ial evidence victims were in the line of fire where defendant pointed and fired gun at one victim, and other victims were 5 to 20 feet away from where defendant was shooting].) The evidence support s Tousant’s assault convictions.
VI. The Trial Court Properl y Respon ded to a Jury Question.
Tousant argues the trial court failed to adequately respond to a jury question seeking clarification about the date of the conduct supporting his August 15 firearm possession charge

— the same day as the Berkeley shooting

. This claim fails.
The trial court instructed the jury on the elements for unlawful possession of a firearm in violation of section 29800, subdivision (a)(1). For count 8, the verdict form required the jury to determine whether Tousant40 unlawful ly possessed a firearm “on or about August 15, 2015.” During deliberations, the jury asked the court: “With regards to Count #8 [possession of a firearm] , what does the phrase ‘on or about August 15’ mean? Does this mean before/after the 15th? Does it mean April? How flexible is this phrase?” After conferring with counsel, the court responded, “With respect to count 8, the phrase ‘on or about August 15’ concerns evidence that was presented relative to conduct alleged to have occurred on that [ sic ]. [¶] If
this [does] not adequately answer your question, please let me know.” Jurors remained confused and again asked for clarification. The court and counsel conferred again, and the court responded , “In this particular case . . . [i] t’s August 15.”
Rather than identifying an error in this response, Tousant argues the trial court did not adequately clarify that count 8 related to his conduct on August 15, 2015. This is unconvincing

. Section 1138 requires trial courts “to provide the jury with infor mation the jury desire [s] on points of law” during deliberation s . ( People v. Smithey (1999) 20 Cal.4th 936, 985 ( Smithey ); § 1138.) “ Where the original instructions themselves are full and complete,
the court has discretion under section 1138 to determin e what additional explanations are sufficient to satisfy the jury’s request for information.” ( People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court must “ rectify any confusion expressed by the jury regarding instructions , but has discretion to determine what additional explanations are sufficient to satisfy the jury ’ s request for information. ” ( Smithey , at p. 1009.) Initially, Tousant forfeited t his challenge because the court responded after consulting with Tousant’s trial counsel. ( People v. Ross (2007)
155 Cal.App.4th 1033, 1048 [ party forfeits objection to “ court ’ s response to a jury inquiry through counsel ’ s consent, or invitation or tacit approval of, that41 response ”].) Even assuming Tousant preserved the issue f or our review , the court’s response was not an abuse of discretion

. ( See People v. Lua (2017)
10 Cal.App.5th 1004, 1016 [ standard of review for claimed errors under section 1138]. ) Count 8, Tousant’s firearm possession charge related to his
conduct on August 15, 2015, the day of the Berkeley shooting. (§ 29800,
subd. (a)(1) (count 8)). Upon request, t he trial court clearly identified the date of conduct supporting this charge , August 15

. This was the correct

response, and Tousant does not identify any additional information that was necessary to address the jury’s confusion

. T here was no abuse of discretion.
VII.
Tousant Does Not Establish Ineffective Assistance of Counsel.

Tousant broadly asserts he received ineffective assistance of coun sel for

a ny objections we find inadequately preserved in the trial court, and thus forfeited on appeal. This generic argument fails to satisfy the heavy burden to prevail on an ineffective assistance of counsel claim on appeal. For that, a defendant must show (1) trial counsel’s performance was deficient , falling below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a re asonable probability that, but for counsel’s errors, the result of the proceeding would have been different. ( People v. Ledesma (1987) 43 Cal.3d 171, 215

- 218.) It is

“ particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one , or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more42 appropriately resolved in a habeas corpus proceeding. ” ( People v. Mai (2013) 57 Cal.4th 986, 1009 .) Relevant here, Tousant forfeited his chal lenges to the court’s response to a jury question and the breadth of information permitted by the search warrant of his cellphone. But Tousant simply stat es “there was no conceivable tactical reason not to object to the errors described above.” There is no indication in the record why counsel did not object to either issue and there may be satisfactory explanations for both. For the trial court’s response to the jury, trial counsel may have believed the court corrected any misconception s about Tousant’s charged firearm offense. As for the objection to the search warrant, trial counsel may have believed it would be futile to object to the breadth of the information sought by the search warrant. ( See People v. Thompson (2010) 49 Cal.4th 79, 122 [ “ Counsel is not ineffective for failing to make frivolous or futile motions ” ].) Where the record is silent on these points, Tousant’s ineffective assistance claim is “more appropriately decided in a habeas corpus proceeding.” ( People v. Mendoza Tello (1997)
15 Cal.4th 264, 266

- 267.)
VIII. There Was No Cumulative Error.
Tousant contends the cumulative effect of his identified errors warrant reversal of the judgment. We have not identified any errors, individual or cumulative, and reversal is not required. ( People v. Coryell (2003)
110 Cal.App.4th 1299, 1309 .) DISPOSITION The judgment is affirmed.43 STEWART, J.

We concur.

KLINE , P.J.

R ICHMAN , J.

P

eople v. Tousant (A1 56044 )44 Trial Court: Alameda County Superior Court
Trial Judge: Hon. Kevin R. Murphy

Counsel:
James S. Donnelly

- Saalfield, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share, Leif M. Dautch and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and R espondent.